Senate Says No to ACA Repeal Sans Replacement

Bill would have delayed repeal for 2 years

WASHINGTON -- Republican leaders in the Senate continued pushing through votes Wednesday on the repeal and -- sometimes -- replacement of the Affordable Care Act (ACA), but without much success.

The first non-procedural vote on Tuesday was on a bill to repeal the ACA without settling on a replacement; it would repeal the employer and individual mandates immediately but delay repeal of the health insurance coverage provisions to 2020. That measure failed 45-55, with seven Republicans voting against it.

The vote on that bill was delayed for several hours as Republicans tried to work out language relating to abortion. The bill contained a provision that would have defunded Planned Parenthood for a year; however, a similar provision in another repeal bill was found by the Senate parliamentarian to be subject to the Byrd rule, meaning it could be filibustered and would therefore require 60 votes for passage. In the end, the bill did include the defunding provision.

Wednesday's events followed on the heels of a fractious day on Tuesday, when the Senate very narrowly voted to move forward with debate on a measure to repeal the ACA. That 50-50 vote, with the tie broken by vice-president Mike Pence, was made more dramatic by the return of Sen. John McCain (R-Ariz.) from medical treatment in Arizona to cast a vote in favor of proceeding with debate.

Later in the evening, the Senate voted down a version of the Senate Republicans' own repeal-and-replace bill, the Better Care Reconciliation Act. That original measure would have resulted in 22 million fewer people having health insurance in 2026 compared with current law, according to an estimate issued on June 26 by the non-partisan Congressional Budget Office (CBO).

Because some of the bill's provisions had not yet been scored by the Congressional Budget Office (CBO), the measure required 60 votes to pass; it failed with a vote of 43-57, with nine Republicans opposing it.

A “Skinny” Repeal Bill Possible

Wednesday morning began with Senate Majority Leader Mitch McConnell (R-Ky.) exhorting his colleagues to pass a repeal bill. "We're determined to do everything we can to succeed," he said. "Ultimately we want to get legislation to end [Obamacare] through Congress ... It certainly won't be easy ... But we know moving beyond the failures of Obamacare is the right thing to do."

But Senate Minority Leader Chuck Schumer (D-N.Y.) disagreed. He noted that some Republicans might be persuaded that passing a "skinny" repeal bill -- one that repeals employer and individual mandates but leaves most of the rest of the ACA in place -- could be a good way just to get to a conference with the House on repeal legislation.

"But make no mistake about it, skinny repeal is [equivalent to] full repeal," he said. "The hard right members of the [House] Freedom Caucus will demand full repeal or something very close to it. They will demand deep cuts to Medicaid, tax cuts for the wealthy, [and no help for] people with preexisting conditions ... Skinny repeal is a ruse to get to full repeal."

Some Urge Full Repeal

And indeed, full repeal is what some senators were urging. "Sure we should replace Obamacare; I've been advocating that from the beginning," said Sen. Rand Paul (R-Ky.) "But we have to figure out what that replacement is, and the only way to force a bipartisan compromise is if we repeal it."

"If you repeal it, even the other side will say, 'Oh my gosh, we have to do something.' [Otherwise] they won't vote for repealing even one tax; that will be left to the Republicans."

The Senate also voted down several other amendments, including:

An amendment by Sen. Joe Donnelly (D-Ind.) that would have removed provisions of the House ACA repeal bill which cut Medicaid funding and ended the Medicaid expansion. This failed by a vote of 48-52.

An amendment from Sen. Bob Casey (D-Pa.) expressing the “sense of the Senate” that Medicaid and private insurers should retain their coverage for individuals with disabilities; it was rejected by a vote of 48-51.

Another “sense of the Senate” amendment from Sen. Dean Heller (R-Nev.) which urged the Senate to refrain from considering bills that would cut benefits or coverage for current Medicaid enrollees. This symbolic amendment was soundly defeated in a 10-90 vote.

Outsiders Weigh In

The American Medical Association (AMA) weighed in on the debate, urging the Senate to start over. "To date, the amendments proposed to repeal or replace the Affordable Care Act ... would harm vulnerable patients in every state," AMA President David Barbe, MD, said in a statement. "We again urge the Senate to engage in a bipartisan process – through regular order – to address the shortcomings of the Affordable Care Act and achieve the goal of providing access to quality, affordable healthcare coverage to more Americans."

Edwin Park, vice president of health policy at the Center on Budget and Policy Priorities, a left-leaning think tank here, agreed. "It's clear that no good bill will come from this process," he said in an email. "Senators and representatives should instead embrace a bipartisan, transparent process aimed at strengthening our healthcare system."

Others saw different problems with the Republicans’ process. Michael Cannon, director of health policy studies for the Cato Institute, a libertarian think tank, said it was a “mistake” to offer a repeal-only bill without repealing the ACA’s Title I regulations — such as essential health benefits, guaranteed issue, the medical loss ratio requirements, and community rating.

Even if such changes were ruled out of order, Cannon said he believes Republican leadership, if they correctly framed their argument, could persuade the parliamentarian to allow such changes. Otherwise, Vice President Pence could have intervened and overruled her opinion, Cannon said.

As for the skinny bill, Cannon said it’s “better than nothing.” But he added that the bill could cause the individual market to collapse “even faster than it is now” because without the individual mandate, which would be repealed under the bill, fewer healthy people will buy health insurance.

“The real action is the behind-the-scenes lobbying Majority Leader Mitch McConnell [R-Ky.] is doing to rally Republicans around the likely so-called ‘skinny’ repeal,” Fishman wrote in an email to MedPage Today. “Republican leadership are clear this would result in a final bill that would be written in secret and follow the same template that both the House and Senate bills have followed to this point: gutting insurance protections, massive cuts to Medicaid, and more than 20 million people losing coverage.”

The skinny bill has a “very good chance of passing,” wrote Doug Badger, a senior fellow for the Galen Institute, in an email. He cited “broad support” for scrapping the individual mandate among both Democrats and Republicans.

If McConnell is planning to pass the skinny bill just so he can hash out a different agreement with the House, “that is nuts,” said Bob Laszewski, president and founder of Health Policy & Strategy Associates, an Alexandria, Va., consulting firm, in an email. “The House bill is arguably even more conservative on a net basis than the Senate bill. What makes McConnell think by bringing the Freedom Caucus back into these discussions that he can find a way to keep his moderate Republicans onside?”

“I just can’t see a viable end game here,” Laszewski wrote. “If you set out to design the perfect nightmare you couldn’t do it this well.”

On Wednesday night, Schumer said an estimate that Senate Democrats requested from the CBO showed that the “skinny” repeal bill would result in 16 million Americans losing their health insurance and millions more facing an increase of “at least 20%” in their health insurance premiums. He also slammed Republican leaders for developing a bill in secret.

“Democrats are not going to participate in this one-sided and broken process,” Schumer said. “Once the majority leader shows his hand, Democrats will use the opportunity to try and amend the bill. But we have to see it first and we ought to see it soon in broad daylight, not at the 11th hour. Until we see the real bill, Democrats will offer no further amendments.”

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